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April 24, 2006
Avoiding H-1B Visa Wage Violations

H-1B visas allow certain skilled foreign nationals to work in the United States for 3 years or, if renewed, for 3 years more. They are used most frequently by high-tech employers, universities, and multinational employers that find workers with certain qualifications in short supply. The visas are available for jobs that require at least a bachelor's degree and call for the theoretical application of a highly specialized body of knowledge.

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Recently, Computech Inc., which places computer professionals at workplaces throughout the nation, agreed to pay $2,250,000 in back wages and a $400,000 fine to settle Department of Labor (DOL) charges that it violated H-1B visa rules concerning the employment of over 230 foreign nationals.

Computech allegedly didn't pay workers on H-1B visas, several of whom were in California, the minimum required wage rates in the areas where they were employed. Computech was also accused of frequently "benching" the H-1B workers without compensation, which violates H-1B program rules. Besides the back wages and fine, the settlement also prohibits Computech from participating in the H-1B visa program for 18 months.

Avoid Trouble

Many employers that hire foreign workers on H-1B visas when work is plentiful often struggle with what to do with them when times are tough. But as the recent Computech development shows, paying these workers a lower wage than authorized or "benching" them isn't the answer.

Here are some guidelines to help you follow the rules and stay out of trouble:

Follow wage requirements. Sponsoring a worker for an H-1B visa involves various steps, including filing a Labor Condition Application (LCA) with the DOL and, once that's approved, applying to the U.S. Citizenship and Immigration Services (USCIS) for the actual visa. In your LCA, you must agree to pay the worker your industry's prevailing wage or the actual wage for that job at the worksite, whichever is higher. These rates must be backed by a wage survey.

You're also required to offer these foreign workers the same benefits you provide U.S. employees. It's important to keep the wage information that's in your H-1B file up-to-date to help defend your pay practices if an H-1B visa worker complains to the DOL that they are paid less than the prevailing wage.

Don't bench workers. Some employers who are implementing layoffs or other cost-cutting measures may be tempted to "bench" an H-1B worker­to stop paying them when there is no work without actually firing them and terminating their visa sponsorship. But this practice is prohibited, and continuing as the worker's sponsoring employer for visa purposes can leave you open to claims for back wages.

The law requires you to pay a worker you sponsor at the prevailing wage until you withdraw the visa petition. If no work is available, immediately notify the USCIS to vacate the visa. Also, try to give H-1B visa employees as much advance notice as possible before a layoff so they can look for another job while still on your payroll.

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